Supreme Court of Canada won’t hear Ross River case

The Supreme Court of Canada has dismissed the Yukon government's request to appeal a case involving mineral staking in the Ross River Dena Council's traditional territory.

The Supreme Court of Canada has dismissed the Yukon government’s request to appeal a case involving mineral staking in the Ross River Dena Council’s traditional territory.

The country’s top court issued its decision early Thursday morning.

As is customary in these cases, the three judges – Chief Justice Beverly McLachlin and Justices Rosalie Abella and Thomas Cromwell – did not provide reasons.

The ruling puts to rest any question that a decision by the Yukon Court of Appeal last year will now become law.

Under the territory’s current free-entry system, anyone can stake a claim in the territory. Once the claim is registered with the mining recorder, the holder of the claim has the right to carry out basic work including things like clearing trees, building trails, digging up rock and using explosives.

After the Ross River Dena Council took the government to Yukon Supreme Court in 2011, Justice Ron Veale ruled the government has a duty to consult with the First Nation regarding the work. But Veale said that could be done after a claim was issued.

Both the government and the First Nation appealed the case.

Last December the Court of Appeal agreed the government had a duty to consult but ruled the Ross River Dena Council must be notified earlier.

The government “has a duty to notify and, where appropriate, consult with and accommodate the plaintiff before allowing any mining exploration activities to take place within the Ross River area, to the extent that those activities may prejudicially affect aboriginal rights claimed by the plaintiff,” Justice Harvey Groberman wrote at the time.

“In order for the Crown to meet its obligations, it must develop a regime that provides for consultation commensurate with the nature and strength of the aboriginal rights or title claim and with the extent to which proposed activities may interfere with claimed aboriginal interests.”

The government was given a year to make any necessary changes. That deadline still stands, leaving the government with about three and a half months.

All the parties involved agree that means there is work to be done.

Tom Ullyett, an assistant deputy minister with the Yukon’s Justice Department, said the government intends to move forward as quickly as possible to implement the court of appeal’s ruling.

He said he is confident any changes, with input from Ross River Dena Council, will be able to be made in time.

“I know officials at the land claims implementation secretariat are, as of today, beginning to work with colleagues at EMR (Energy Mines and Resources) and in consultation with justice lawyers as to how best to comply with the court’s decision. In other words what that consultation will look like,” he said Thursday.

In the meantime, there is no staking ban in the Ross River area, said Jesse Devost, a spokesperson for the Department of Energy, Mines and Resources.

The number of claims being staked in the territory has decreased over the years, Devost said.

So far this year, 1,227 claims have been staked in the territory up until the end of June.

Last year 6,000 claims were staked during the same period. In 2011, that number was a spectacular 77,000.

Yukon Chamber of Mines president Rob McIntyre said he believes that “if cooler heads prevail” a solution can be found that meets the court’s requirements but doesn’t damage the economy.

“I believe the Ross River Dena Council wants to continue to have a prosperous future. I believe that the Yukon wants to continue to have a prosperous future and I believe that the mining industry wants to continue to operate in the Ross River territory in the future,” he said.

McIntyre pointed out the Yukon has gone through significant changes before, from land claims to devolution to legislative changes, while still continuing to grow.

If the situation is not handled currently, he cautioned, the potential impact of the court’s decision could be damaging.

“If we don’t address this the right way, if cooler heads don’t prevail on this, then Yukon will get a black eye in the investment community. The investment community will look at this and say, ‘Let’s invest elsewhere.’”

The chamber has a legal opinion suggesting this ruling could have an impact beyond Ross River, said McIntyre.

Ross River’s lawyer, Stephen Walsh, agreed that other First Nations will be interested in the decision.

In an interview early Thursday, Walsh said he hadn’t had a chance to speak with his client, but wasn’t surprised by the Supreme Court of Canada’s decision not to hear the appeal.

“The Supreme Court of Canada has issued five major rulings on the duty to consult in the last eight or nine years and I just thought it doubtful that they’re going to want to take that issue on again,” he said.

The Court of Appeal’s decision was related to more than 63,000 square kilometres of southeastern Yukon – about 13 per cent of the territory.

“The declaration technically just applies to a portion of the Kaska territory that we defined as the Ross River area and that’s roughly 50 per cent of the Kaska territory,” Walsh said.

“I can’t think of a single reason in principle that it wouldn’t apply to the whole of the Kaska territory. I think a similar argument could be made for the White River First Nation.”

Having a case heard by the Supreme Court of Canada is relatively rare, according to statistics from the court. In 2012, 65 leave applications were granted and 428 were dismissed. In 2011 69 were granted and 445 were dismissed.

The last time Yukon even applied for leave to appeal a case to Canada’s highest court was in 2009.

Contact Ashley Joannou at

ashleyj@yukon-news.com